Akutowicz v. United States

decided: October 17, 1988.

EDWIN J. AKUTOWICZ, PLAINTIFF-APPELLANT,v.THE UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

Appeal from a judgment entered in the United States District Court for the District of Connecticut (Dorsey, J.), dismissing plaintiff-appellant's claims under the Federal Tort Claims Act and the Privacy Act. Affirmed.

Plaintiff-appellant Edwin J. Akutowicz, pro se, commenced this action in the United States District Court for the District of Connecticut (Dorsey, J.) against the United States of America ("the government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § § 1346, 2671-2680 (1982 & Supp. IV 1986), and the Privacy Act, 5 U.S.C. § 552a (1982). Akutowicz sought damages of $270,000, alleging, inter alia, that the Department of State ("Department"): (1) wrongfully deprived him of his citizenship; (2) fabricated and distorted information in his record, in violation of the Privacy Act; (3) violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982), by providing him with an incomplete record of his case and by providing it in an untimely manner; and (4) failed to provide him with an adequate hearing, in violation of the due process clause of the fifth amendment.

The district court granted in part the government's motion for summary judgment, holding that Akutowicz's tort claims were barred by section 2680(a) and (h) of the FTCA, and that the constitutional claims were barred under the doctrine of res judicata. Subsequently, the government successfully moved to dismiss Akutowicz's remaining claims under the Privacy Act and the FOIA for lack of subject matter jurisdiction. Judgment was entered accordingly.

Plaintiff appeals from the district court's rulings under the FTCA and the Privacy Act. Because we find that Akutowicz has not satisfied the private analog requirement of the FTCA, we affirm the district court as to the tort claims for the reasons that follow. We also affirm the court's dismissal of the Privacy Act claims, because Akutowicz failed to satisfy the Act's jurisdictional requirements.

BACKGROUND

Edwin J. Akutowicz, a mathematician, was born a United States citizen. From 1960 to 1961, Akutowicz resided in France while he held a position as a visiting professor of mathematics at the University of Montpellier, also in France. After teaching in Pennsylvania and Texas for several years thereafter, he returned to France in 1965 to teach at the Institute of Mathematics of the University of Science and Technology of Langredoc. Plaintiff has resided continuously in France since 1965, although he asserts that, for approximately forty years, he has co-owned and maintained his family home in Windsor, Connecticut.

Akutowicz claims that in order to hold a regular appointment in the French national educational system, he was required under French law to obtain French citizenship. Thus, on May 12, 1970, Akutowicz became a naturalized French citizen. His wife and two children, both of whom were born in France as United States citizens, also were naturalized as French citizens.

In 1974, plaintiff applied for, and received, a French passport, in order to accompany an all-French academic delegation to India and to avoid complications in crossing international borders as a member of the delegation. Apparently, he never made that trip. In June 1977, Akutowicz sought to obtain a United States passport from the United States Consulate General at Marseille. His last U.S. passport, which had been issued to him in 1966 by the United States Embassy at Paris, had expired in 1969.

Alerted by his application for a new passport, the Department of State began an investigation to determine whether, by becoming a French citizen, Akutowicz had relinquished his United States citizenship. After a five year investigation, the Department concluded that Akutowicz had expatriated himself under the provisions of section 349(a)(1) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1481(a)(1) (1982).*fn1 Thereafter, on March 23, 1982, the Consulate General at Marseille issued a certificate of loss of nationality pursuant to section 358 of the INA, id. § 1501.

Shortly after he learned of his "banishment," Akutowicz decided "to pursue his defense against [the Department's] aggression," Complaint at 3. To do so, he sought from the Department a copy of his record, which the Department is obligated to maintain under the provisions of section 552a(g)(1)(C) of the Privacy Act. In August 1983, after "over fourteen months of prodding" and upon the intervention of Senator Lowell Weicker, Complaint at 3, Akutowicz asserts that he finally received a "seriously incomplete" copy of his record from the Department, id. at 3-4.

In May 1982, prior to the receipt of his record, Akutowicz appealed the revocation of his citizenship to the Department's Board of Appellate Review (the "Board"). In its decision dated October 3, 1984, the Board reversed the Department's determination regarding Akutowicz's intention to relinquish his citizenship, concluding that plaintiff had "performed no act clearly inconsistent with an intent to retain United States citizenship," Attachment at 26. The Board therefore reinstated his citizenship. Notwithstanding its decision, the Board observed that "the Department and the [consular] posts concerned developed [Akutowicz's] case patiently and carefully, offering him full due process," id. at 19.

In March 1984, Akutowicz commenced an action pro se against the United States in the United States District Court for the District of Connecticut, see Akutowicz v. United States, Civ. No. N-84-262 (D. Conn. 1984), where he alleged various claims arising out of the deprivation of his citizenship. In granting the government's motion to dismiss, the court on December 17, 1984 concluded, inter alia, that plaintiff failed "to demonstrate an adequate prior ...

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